Victorian workplace manslaughter proposal: different standard, same way to comply

The Victorian Government introduced a Bill to Parliament on 29 October 2019 that will, if passed, insert new offences of ”workplace  manslaughter” into the Occupational Health and Safety Act 2004 (Vic.) (OHS Act). 

If passed, it will bring Victoria into line with Queensland and the ACT, where industrial manslaughter offences already exist. The NT and Western Australia are also making active moves to introduce industrial manslaughter offences. 

However, the Victorian proposal has several important differences to the offences already in place and the offences being proposed in other jurisdictions. Its introduction will therefore add to the difficulties employers face when navigating work health and safety (WHS) laws in different states and territories following the failure to fully harmonise Australian WHS laws earlier this decade.

Critically, the new offences are linked to existing duties under the OHS Act. This means that although a new “negligence” standard will be introduced to WHS regulation in Victoria, ultimately, duty holders only need to continue complying with the existing duties to achieve compliance with these new offences. These new offences will capture only the most serious and negligent breaches of workplace safety, that would have already constituted serious offences under the OHS Act.

The key points are: 

• The offences will apply to organisations (including body corporates, partnerships, unincorporated bodies and unincorporated associations), self-employed persons and “officers”. The definition of “officer” is the same as in s 9 of the Corporations Act 2001 (Cth), as already adopted in other parts of the OHS Act.
   
• Employees (provided they are not “officers”) and volunteers will be exempt from the proposed offences. However, as stated in the Bill’s Explanatory Memorandum, nothing prevents employees or volunteers being prosecuted for common law manslaughter where their conduct causes a death at work (as is currently the case).
   
• Despite much discussion during consultation for the proposed offences, there is no exemption for small or family-run organisations (such as family-operated farms). The Explanatory Memorandum indicates that the Government’s preference is to rely on prosecutorial discretion for certain duty holders not to be prosecuted where it is not in the public interest to do so. 
   
• A duty holder will be guilty of a proposed offence if the relevant conduct: 
  • is “negligent” 
  • constitutes a breach of an existing duty under the OHS Act, and 
  • causes the death of a person at or near a workplace. 
• “Negligent” is defined to mean conduct that “involves a great falling short of the care that would have been taken by a reasonable person [or body corporate] in the circumstances in which the conduct was engaged in” and that involves a high risk of death, serious injury or serious illness. This is not the civil standard of negligence, but the much higher “criminal negligence” standard. “Conduct” includes acts and omissions. 
   
• The proposed offences are linked with the existing duties under the OHS Act. The Explanatory Memorandum explains this approach is designed to “provide significant consequences for breaching those duties where negligent conduct causes death”.
  
  Importantly, linking to existing duties also means the principle of reasonable practicability will apply to most prosecutions. In relation to organisations, the exceptions will be workplace manslaughter offences where the alleged “applicable duty” is a breach of s 32 of the OHS Act—where the prosecution will be required to prove the duty holder recklessly engaged in conduct that places or may place another person who is at a workplace in danger of serious injury—or s 21(2)(e) of the OHS Act—where the prosecution will be required to prove the duty holder failed to provide necessary information, instruction, training or supervision.  
  
  In all other cases involving an organisation, if the prosecution is unable to prove that a duty holder failed to take an identified reasonably practicable step, any prosecution for workplace manslaughter would not succeed. In practice, this means that although the new standard of negligence will be introduced, a duty holder that complies with its existing duties under the OHS Act should not be captured by the workplace manslaughter offences. Continuing to comply with existing duties will constitute compliance with the new offences.
   
• The proposed offences introduce the concept of “causation” to Victorian WHS regulation. However, the Explanatory Memorandum states that “the mere fact that an organisation's or officer's conduct contributed causally to the death, or was a necessary cause of it, is not sufficient. It must have contributed significantly to the death or have been a substantial and operating cause”. 
   
• Organisations may be found directly or indirectly liable. The Explanatory Memorandum explains that: 
  • Direct liability arises where an organisation’s “unwritten rules, policies, work practices or conduct implicitly authorised non-compliance, or failed to create a culture of compliance, with its duties” under the OHS Act and a death resulted from the negligent conduct.
  • Indirect liability arises where the act(s) or omission(s) of individuals within an organisation amount to negligent conduct of the organisation, regardless of whether a death occurred due to one person's negligence or the aggregate negligence of multiple people, and regardless of whether a person of sufficient authority within the organisation is at fault. 
• However, the Explanatory Memorandum confirms that it is not intended for employers to be found guilty of workplace manslaughter solely because a "rogue" employee, agent or officer acted contrary to steps taken or things provided or directed by the company (a principle recently reinforced in Victoria by the Court of Appeal in DPP v JCS Fabrications Pty Ltd & Anor [2019] VSCA 50).
   
• The offence will apply to all types of workplace risks that cause death, including mental health risks and long-term occupational diseases. For example, an employee who takes their own life as a result of a duty holder’s negligence. Or where a duty holder’s negligence causes a person to develop a chronic illness, such as mesothelioma, that later causes their death. 
   
• The offences also seek to protect a broader range of persons than existing industrial manslaughter offences in other jurisdictions, with members of the public included. The Government’s public statements about the proposal in the lead up to the 2018 election seemed to suggest this inclusion was in response to the 2013 wall collapse on Swanston Street in inner city Melbourne that killed three members of the public. 
   
• The penalties are significantly higher than anything seen before for WHS offences in Australia. If found guilty of workplace manslaughter, individuals face up to 20 years’ imprisonment while body corporates face fines of up to $16.522 million (indexed each year). 
   
• The Director of Public Prosecutions will prosecute the proposed offences, likely in the County Court before Judge and jury. 
   
• There will be no limitation period for prosecuting the proposed offences, in line with existing common law manslaughter offences and to allow sufficient time for complex and time-consuming investigations to be completed.

The Bill is currently awaiting its Third Reading in the Legislative Assembly before being debated in the Legislative Council. We will keep you updated on its progress through Parliament.